The Delhi High Court on Wednesday issued notice to the Central government on a petition seeking to declare restitution of conjugal rights, or right to stay together, for estranged couples under the Hindu Marriage Act unconstitutional in view of the Supreme Court judgement on privacy.
A division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar asked the government to file its response on the Public Interest Litigation (PIL) by December 8.
Petitioner Sanjjiiv Kkumaar, who claims to be a rights activist, sought the court's direction to declare the act's Section 9, on restitution of conjugal rights as null, void and unconstitutional "as it amounts to state interference with a woman's private decision whether or not to engage in sexual activity".
"Also it violates woman's right to privacy, dignity and bodily integrity and her right to be left alone with interference from state and non-state actors... Women consent or choices and her right to refuse participation in sexual activity, along with other grounds," he added.
Under the Hindu Marriage Act, an estranged husband or wife can move court seeking restoration of their rights to cohabit with the other spouse. The court, on being satisfied of the plea, can order restitution of conjugal rights.
Kkumaar contended that the consent of women or men is now under right to privacy a fundamental right and after the apex court's verdict, it is crystal clear that "state cannot force a wife or husband when to consent to sex or intercourse or cohabitation and women's right to procreate".
A nine-judge Constitutional bench of the Supreme Court last month unanimously held that right to privacy is a fundamental right guaranteed under Article 21 of the Constitution.
Kkumaar said the state can neither force wife or husband into restitution of conjugal rights, ordering an unwilling partner for intercourse or cohabitation and "the state cannot ask why a man or women are not having sexual relations or since how long they haven't cohabitated or ask or enquire about their consent or their view on same".
He added that Supreme Court in its verdict on right to privacy has said: "The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both state, and non-state actors and allows the individuals to make autonomous life choices."
The 2014 verdict of the Supreme Court ruling that "not allowing a spouse for long time to have sexual intercourse by his or her partner, without sufficient reason, itself amounted to mental cruelty to such spouse and ground for divorce" becomes unconstitutional and void in terms of the privacy verdict.
"Right to privacy now being a fundamental right has changed the contour of the some existing Acts and Rules or CPC and made them unconstitutional and void," said the plea.
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